Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

The Deputies' language does not deal with the issue of positive discrimination, though, and I think that needs to have a constitutional basis.

Deputy Michael Collins is not here any more, and I do not like addressing critiques of Deputies when they are not here, but he suggested that this amendment could bring in discrimination against various groups. Fundamentally, this amendment is about addressing discrimination, including the constitutional discrimination that tens of thousands of people in families that are not marital families face right now. He said this is a one-size-fits-all approach. I would argue that our current Constitution is the one-size-fits-all approach. It is marriage or nothing. That is what I see as a one-size-fits-all approach. As regards the concern he raised about an unrelated member of a family getting the family farm, there is no cause for such concern. That is not in any way possible under this legislation. Succession law sets out inheritance rights, and there is no such risk. I hope I can reassure the Deputy on that point.

Speaking to amendments Nos. 2 and 3 from the Labour Party and People Before Profit, respectively, as the House will know, the Government proposes to amend Article 41.1 to read that the State recognises the family "whether founded on marriage or on other durable relationships" as "the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law". The purpose of the Government's amendment is to expand the definition of the family under the Constitution beyond just the marital family and allow us to include cohabitees and any children they might have as well as one-parent families.

The purpose of the change to Article 41.3.1°, which Deputy Bacik proposes, and the deletion of that word is to formally de-link marriage from the family, to say that one can exist without the other.

Speaking to the questions from Deputies Bacik and Clarke as to why we are putting the term "durable" into Article 41.1.1°, there are two reasons for that.

We wanted a broader, more inclusive recognition and definition of the family. We want to do that in an up-front way. We want to recognise at the start of the article on the family, in Article 41.1.1°, that there are families beyond the marital family and that the definition of family includes those who are married but other durable relationships as well.

The deletion only approach that Deputy Bacik is proposing in her amendment is technically doable, but it does not, in our view, go sufficiently far in calling out other families within our Constitution. This is not just a tidying-up exercise. This has to do something to tangibly recognise the existence of other forms of family in our Constitution. We are doing that through the use of the term "durable relationships". We will talk more about why that particular expression is used. That is the fundamental choice. We are doing it right at the start of Article 41. It is a deliberate choice with deliberate intent. Since some of the most marginalised families in the history of Ireland have been lone-parent families, I think this affirmative recognition is the correct approach in providing that the concept of family in Article 41 is no longer limited to the marital family and that it also encompasses other durable, committed relationships, like one-parent families, cohabiting couples and their children, if they have any. I absolutely recognise where the de-linking approach is coming from but we do not think that just de-linking marriage and the family is enough. We have to have an affirmative recognition of other forms of family in our Constitution.

Deputy Barry proposed amendment No. 3. The outcome of that is to remove the special protection afforded to marriage in the Constitution. It is the position of the Government that marriage is an important institution and it is highly valued, though not by everybody, which is absolutely legitimate, but for many people in this country, marriage is important to them. It was important in the context of the marriage equality referendum. A significant part of the argument I and many campaigns made was that marriage is important and should be open to same-sex couples as well. The Government amendment will mean the Constitution will recognise and embrace families outside of the marital family, but it will retain that special protection for marriage. Nobody loses anything from the Government proposal. Nothing is taken away from anybody under the Government proposal.

Our concern is that the consequence of amendment No. 3 is to delete that special protection of marriage. Irrespective of one's view on the issue of one's marriage, we would have a strong concern about how that will be portrayed in a campaign. The Government would be taking away the constitutional recognition of your marriage. Whether Deputy Barry disagrees with the overall principle or not, I think he knows how something like that could be weaponised in a campaign. I think it would be weaponised. I genuinely think that if we went with that approach to try to bring recognition to non-marital families, that would put the proposal in jeopardy. Deputy Barry may disagree with me but I really think it would. That is the primary reason we would not take such an approach. The approach we are adopting maintains the special recognition of marriage but also allows us to recognise families beyond the constitutional family, like one-parent families and cohabitees.

On the question from Deputies Bacik, Clarke and others on the use of the term "durable relationship" and what we mean by that, the rationale behind using the term "other durable relationships" was to expand the concept of the family in Article 41 to cohabitees with or without children and to one-parent families. The term "durable relationship" is intended to encompass relationships of strength, stability and commitment, such as are consistent with the existing definition of family contained in Article 41, that it is the fundamental unit group of society. I want to be very clear that "durable relationships" covers both horizontal relationships between two individuals in a cohabiting situation but it also covers that vertical relationship between a parent and their child. I want to be clear about the reference to the citizenship directive and the term "durable relationship" in it. There are multiple situations where European Union law and Irish law use similar language and are not talking about the exact same thing. The definition of "durable" that we are seeking to put into the Irish Constitution is not that from the citizenship directive. The citizenship directive is clear that it is just looking at the horizontal relationship between two adults. That is not the case here and I hope I can make that as clear as possible.

On the second reason we would use the term "durable", as a firm reassurance to Deputy Collins and to address the legitimate questions that Deputy McNamara raised about whether other forms of relationship or relationships we do not contemplate being given constitutional status now, we were always clear that serious, tangible relationships are meant to be protected in Article 41. No one wants something fleeting or transient. My reading of the citizens' assembly and the joint committee was very much in line with that. We wanted to give clear guidance to the courts and to the State about what is now encompassed. There is guidance already in Article 41, because it talks a little about what a family looks like. It never actually defines the family as being anything other than something based on marriage. It makes clear that the family, as I said, is the natural, primary and fundamental unit group of society. It also makes it clear that it is a moral institution.

We are adding "durable" to give further guidance about what sorts of relationships are protected under Article 41. A polygamist relationship would not be protected under that.

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